Way clear for autonomous driving - Update

Daniel Wuhrmann

Classification in the previous legal framework

The legal framework for self-driving vehicles has undergone a number of "upgrades" in recent years. In particular, the Act Amending the Road Traffic Act and the Compulsory Insurance Act (Autonomous Driving Act) (PDF only in German) of 12 July 2021, created fundamental prerequisites to enable autonomous driving on public roads in Germany.  

Aspects that have not been regulated so far, e.g. technical requirements, approval of the self-driving vehicles and due diligence requirements for the persons involved in the operation, will now be defined by a new regulation. The aim of the Ordinance on the Regulation of the Operation of Motor Vehicles with Automated and Autonomous Driving Functions and on the Amendment of Road Traffic Regulations ("AFGBV"; the Ordinance), which was adopted on 23 February 2022, is to enable the regular operation of motor vehicles with highly and fully automated driving functions on public roads. 

The Ordinance thus supplements the existing provisions and bridges the period until the expected harmonisation in EU law. 

More comprehensive manufacturer obligations and their impact on the supply chain

In addition to the issuance of operating licenses as well as permits and approvals, more extensive manufacturer obligations have also been established.

The Ordinance assigns verification, market surveillance tasks and powers to the German Federal Motor Vehicle Authority to monitor the conformity of vehicles. Since the Authority can only perform these tasks and exercise these powers on the basis of sufficient information if it has the relevant documents available for inspection, manufacturers must provide relevant documents and information free of charge (e.g. grant access to software used) in accordance with § 5(5) of the Ordinance. Within this framework, manufacturers can oblige their suppliers to keep more extensive documentation and/or for a longer period of time or charge them for the costs of obtaining such documentation.

Manufacturers will also be affected by the "technical supervision" requirements set out in § 14 of the Ordinance. The owner is responsible per se for ensuring that a suitable natural person is available for technical supervision (§ 13(6), Sentence 1 of the Ordinance). However, the manufacturer must provide appropriate training. Depending on which components and parts of a vehicle are affected, it can be assumed that the manufacturer will also pass on these obligations, or at least the associated costs, "down the supply chain."

Outlook and significance

It is expected that manufacturers of autonomous vehicles will respond to the new requirements. The passing on of the obligations incumbent on them and/or, alternatively, the passing on of the cost burden to the supply chain can thus be expected – both by contractual means. So once again, it's the same story all the way through the supply chain: Watch out when drafting contracts.

The next legislative step is the vote of the Federal Council on the Ordinance. If the Council agrees, the auto industry may soon be able to put autonomous driving vehicles on the road and in people's garages.

[March 2022]